United States Court of Appeals

For the First Circuit

No. 14-1566
UNITED STATES,
Appellee,
v.
JORGE LUIS MENDEZ, a/k/a Daniel,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Prez-Gimnez, U.S. District Judge]

Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.

Kerry A. Haberlin on brief for appellant.

Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Scott A.C. Meisler, Criminal
Division, Appellate Section, U.S. Department of Justice, and Hope
S. Olds, Senior Trial Attorney, Human Rights and Special
Prosecutions Section, Criminal Division, on brief for appellee.

September 11, 2015

THOMPSON, Circuit Judge.

indicted

in

connection

with

Jorge Luis Mendez, who was

vast

conspiracy

to

provide

identification documents to undocumented aliens in the United

States, pled guilty to various charges.
over six years in prison.
appeal.

He was sentenced to just

That sentence forms the basis for this

Mendez contends that it is too long and that various

errors were made by the sentencing judge when handing it down.

Because our review of his claims is frustrated by an insufficient
explanation from the district court, we vacate and remand for
resentencing.
BACKGROUND
A. The Conspiracy
Mendez, along with fifty-plus cohorts, was part of a
scheme to supply undocumented aliens in the continental United
States with the identities of United States citizens residing in
Puerto Rico.1

The conspiracy extended over the course of almost

three years (April 2009 to January 2012) and spanned the country,
with its members operating out of various states (Massachusetts,
Illinois, Pennsylvania, and Ohio, to name a few) and Puerto Rico.

The facts are derived from the change-of-plea colloquy, the

undisputed portions of the presentence investigation report, and
the transcript of the disposition hearing. See United States v.
AlmonteNuez, 771 F.3d 84, 86 (1st Cir. 2014); United States v.
Del ValleRodrguez, 761 F.3d 171, 173 (1st Cir. 2014).
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There were distinct jobs to be done, with Puerto Ricobased Mendez operating as a "Savarona Supplier."

The Savarona

Suppliers would procure "unlawful document sets," a term defined

in the indictment and presentence investigation report (PSR) as
"Puerto Rico-issued birth certificates and corresponding U.S.
Social security cards (both pertaining to the same Puerto Rican
person)," as well as individual fraudulently obtained documents
(termed "unlawful documents"), like driver's licenses and voter
registration cards.
Savarona Suppliers, like Mendez, then transmitted the
documents to identity brokers (who were the ones bringing in the
customers) and the brokers would then sell the sets for $700 to
$2,500 a piece, with more money required for additional individual
documents.

The customers were undocumented aliens and others

residing in the continental United States.

B. The Indictment
In

December

2011,

Mendez,

along

with

fifty-two

defendants, was named in a fifty-count indictment.

picked up the next month.
his

possession

numerous

co-

Mendez was

At the time of his arrest, he had in

identity

documents

in

other

people's

names, including eleven Puerto Rico birth certificates, ten social

security cards, one Puerto Rico driver's license, one Puerto Rico
electoral

card,

and

the

personal

identifying

information

(including social security numbers) for another eight individuals.

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The vast majority of Mendez's co-defendants ended up

pleading guilty and, after some failed negotiations, Mendez did
the same.

Six days before trial was to commence, Mendez pled

guilty without a written plea agreement to Count 1, conspiracy to

possess,

produce,

and

transfer

identification

documents

in

violation of 18 U.S.C. 1028; Count 2, conspiring to encourage an

alien to reside in the United States in violation of 8 U.S.C.
1324; and Counts 22, 23, and 26, aggravated identity theft, in
violation of 18 U.S.C. 1028A.
C. Presentence Dispute
A debate about Mendez's appropriate sentencing range
arose prior to the sentencing hearing with respect to Counts 1 and
2.2

All involved (probation and parties) agreed that Counts 1 and

2 should be grouped, meaning that the governing offense level would

be the "the highest offense level of the counts in the Group."
USSG 3D1.3(a).

The question was whether Count 1 or 2 supplied

the highest offense level.

The probation office thought Count 1 (conspiracy to
commit identity fraud) did.

The computation for Count 1, as

evidenced by the PSR, went as follows.

The relevant guidelines

There was no controversy surrounding the aggravated identity

theft counts (Counts 22, 23, 26).
The parties agreed that a
mandatory two-year term for those counts was to run consecutive to
any sentences on Counts 1 and 2 per 18 U.S.C. 1028A(a)(1) and
USSG 2B1.6. Mendez does not appeal that aspect of his sentence.
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provision, USSG 2L2.1(a), provided a base offense level of 11.

That provision calls for the offense level to be increased by
various levels based on the number of documents involved.
2L2.1(b)(2).

USSG

Positing that the offense here involved 100 or more

documents, the PSR increased Mendez's base offense level by 9.

It

then recommended a 3-level enhancement because Mendez was a manager

or

supervisor

in

criminal

activity

participants pursuant to USSG 3B1.1(b).

involving

five

plus

Assuming a 2-level

decrease for acceptance of responsibility under USSG 3E1.1(a),

the PSR projected the total offense level of 21 for Count 1.

Given

Mendez's criminal history, this yielded a guideline sentencing

range of 37 to 46 months on Counts 1 and 2.
Mendez lodged no objection to the PSR.
however,

took

exception.

The

government

The government,

filed

sentencing

memorandum, which Mendez also did not object to, in which it argued
that Count 2 (conspiracy to encourage aliens to reside in the
United States) provided the higher offense level.

We start with

the government's math and move on to its rationale.

The government began with a base offense level of 12, as
provided by USSG 2L1.1(a)(3).

Like the guideline pertinent to

Count 1 ( 2L2.1), this provision called for the offense level to

be increased by various levels in certain circumstances.

However,

the determining factor was not the number of documents involved

but rather the number of aliens induced or harbored.

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Id.

2L1.1(b)(2).

Suggesting that there were sufficient facts to

demonstrate that Mendez had induced or harbored 100 or more aliens,

the

government

2L1.1(b)(2)(C).

applied

9-level

enhancement.

Id.

Like the PSR, the government added a 3-level

enhancement for Mendez's supervisory role and a 2-level reduction

for acceptance of responsibility.

This placed the offense level

for Count 2 at 22 (one level higher than Count 1), which would
mean Mendez faced a guideline sentencing range of 41 to 51 months
on Counts 1 and 2.

Given the mandatory sentence of 24 months on

the remaining counts, the ultimate range was 65 to 75 months with

the government recommending the low end.
For our purposes, the important part of the government's
calculus is the 9-level enhancement it proposed.
we

will

say

government

more

thought

on

the

that

particular

Mendez

had

theories
not

only

Basically (and
in

bit)

the

trafficked

100

documents, but had also induced or harbored 100 aliens, therefore

justifying the enhancement on Count 2. According to the sentencing
memorandum, this is why.

The government, which suggested that the

whole conspiracy involved over 1,500 trafficked identities, noted

that some of Mendez's co-defendants had admitted in their plea
agreements
involved

that
over

they
100

had

worked

documents,

with

and

trafficked to undocumented aliens.

the

Mendez,

the

documents

conspiracy
were

being

One particular co-defendant,

"Pena," admitted that he was involved in trafficking at least 70

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documents, which had been sent to him by Mendez, to undocumented

aliens in Massachusetts.

The government also pointed out that on

the day of Mendez's arrest, another 20 identities were found in

his

home

presumably

slated

for

more

undocumented

aliens.

Furthermore, text messages intercepted from Mendez's phone during

a 4-month period contained approximately 60 identities that he was
trafficking.

The government concluded that "[e]xtrapolating over

the two-year conspiracy, this shows that well over 100 identities
were involved in this case."
The government thought the PSR further supported its
position.
more

It reasoned that because the PSR had found that 100 or

documents

had

been

involved,

warranting

the

9-level

enhancement for Count 1 under 2L2.1, it necessarily followed

that over 100 document sets pertaining to over 100 aliens were
involved.

It based this claim on Note 2 of 2L2.1, which (at

least according to the government) "reads that 'one document' is

a 'set of documents intended for use by a single person.'"3

The government selectively quotes and then contorts the note's

language. In its entirety, it provides: "Where it is established
that multiple documents are part of a set of documents intended
for use by a single person, treat the set as one document." USSG
2L2.1, note 2. The actual language makes the government's theory
suspect. There is no indication that probation found such a thing
established and, therefore, was using the term "document" in the
manner suggested by the note. Probation simply could have meant
100 single documents, indeed the PSR (and indictment) defined
"unlawful documents" and "unlawful document sets" differently.
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The probation office responded to the government in an

addendum to the PSR. It stood by its position that Count 1 provided
the higher offense level, indicating that the office was "not
convinced

that

[Mendez]

indeed

harbored

or

induced

over

100

aliens."
D. Sentencing
At the sentencing hearing, the government emphasized its
contention that the 100-alien enhancement should apply, making
Count 2 yield the higher offense level.

For support, it simply

reiterated

2's

the

argument

about

Note

language,

again

extrapolating that a finding of 100 documents is equivalent to 100

aliens being induced or harbored.

Mendez made no comment on the

government's

the

position.

Nor

did

judge

weigh

in

on

the

disagreement between probation and the government.

After some back and forth on issues not relevant to this
appeal, the judge handed down the sentence.
and

had

been

grouped,

guideline was 2L2.1.

the

judge

found

Noting that Counts 1

that

the

pertinent

Recall, this is the provision applicable

to Count 1, the count that probation thought controlled and which

yielded the lower offense level.

The judge then went on to

calculate the offense level in the same manner as the PSR.

He

stated that there was a base offense level of 11 and that "since
the offense involved 100 or more documents," a 9-level enhancement
was warranted.

The judge then applied the supervisory enhancement

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and the acceptance of responsibility reduction.

This should have

taken the grand total to 21, as it did for probation; however, the
judge completed his guidelines calculation by stating that the end
result was "a total offense level of 22."

This, the judge

indicated, yielded an imprisonment range of 41 to 51 months.

The

judge

investigation

continued,

report

had

stating

adequately

that

the

applied

"presentence

the

guideline

computations" and that those computations "satisfactorily reflect

the components of this offense by considering its nature and
circumstances."

He then briefly contemplated the 18 U.S.C. 3553

factors, noting the mitigating factors (e.g., no history of drugs

or prior convictions) and the serious nature of the offense.

The

sentence was then handed down with Mendez getting a top-of-therange sentence of 51 months on Counts 1 and 2, and the mandatory
agreed upon consecutive sentence of 24 months on the remaining
counts, for a total of 75 months.
Understandably
calculated

Mendez's

confused
offense

by

the

level

fact

that

utilizing

the
the

judge
PSR's

calculations, but then came out with the offense level of 22 as

advocated

for

by

the

government,

the

prosecutor

asked

for

clarification. Counsel pointed out the discrepancy and then asked:

"So, I just want to confirm that Your Honor, when coming to the
twenty-two . . . did find that as to Count 2 the enhancement for
over a hundred aliens should apply; and that for Count 1 and Count

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2, Count 2 should control." The judge responded: "It does control.

Count 2 controls.

We have two out, plus 9 is 21; plus 3, 24; minus

2, since there was no third point is the 22 that I mentioned."

Mendez's attorney did not object to this computation but did ask
the court to reconsider its sentence, pointing out that Mendez was
a first-time offender, he would face deportation, and some of his
supposedly

more

culpable

co-defendants

had

received

lesser

sentences, albeit from different judges. The judge declined. This

appeal followed.
ANALYSIS
Sentences must be both procedurally and substantively
reasonable.
Cir. 2011).

United States v. Clogston, 662 F.3d 588, 590 (1st

Mendez says his was neither.

On the procedural front, he first argues that the court

erred in applying the 9-level enhancement for the number of aliens
induced or harbored.

More to the point, he claims that (1) the

court failed to make an individualized finding as to the number of

aliens attributable to Mendez, (2) even if the court had, the
record did not support a finding of 100 aliens, and (3) the upward
adjustment

resulted

in

double-counting.4

Mendez's

second

Mendez also raises what he concedes is a legally unmeritorious

argument simply for preservation purposes. Citing Alleyne v.
United States, 133 S. Ct. 2151 (2013), Mendez argues that an upward
adjustment based on judicial fact finding should be deemed
unconstitutional.
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procedural-based offering is that the judge failed to adequately

explain

why

Mendez

deserved

top-of-the-range

sentence

and

instead impermissibly presumed it was reasonable because it fell

within the guidelines range.
With

respect

to

substantive

reasonableness,

claims that his 75-month aggregate sentence was too long.

Mendez
Among

other things, he points to the comparatively shorter sentences

some of his cohorts got, his first-time offender status, and the
fact that the sentence exceeded the government's recommendation.
We start, and ultimately stop, with Mendez's claim that
the judge erred in applying a 9-level enhancement for having
induced or harbored 100 aliens.

We review this claim for plain

error as Mendez failed to preserve it below.

Ramos, 763 F.3d 45, 56 (1st Cir. 2014).

United States v.

That is, we ask whether

"(1) an error occurred; (2) the error was clear and obvious; (3)
the error affected the defendant's substantial rights; and (4) the
error impaired the fairness, integrity, or public reputation of
the judicial proceedings."5

Id. at 56 n.15.

Unfortunately, it is impossible to determine, based on

this record, whether a clear and obvious error (or for that matter,

What the third prong of this test means in the sentencing context
is that, but for the error, it is reasonably probable that the
judge would have imposed a more favorable sentence. United States
v. Ahrendt, 560 F.3d 69, 77 n.5 (1st Cir. 2009). And to satisfy
the fourth prong, "a defendant must then show that leaving the
error uncorrected would cause a miscarriage of justice." Id.
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any error at all) occurred.

"While we have on occasion gone to

significant lengths in inferring the reasoning behind, and thus in

affirming,

some

less-than-explicit

courts, there are limits."

explanations

by

district

United States v. Gilman, 478 F.3d 440,

446 (1st Cir. 2007) (citations omitted).

If we are in fact wholly

unable to discern the court's rationale, appellate review is

unworkable and a remand is necessary.

Id. at 446-47.

That is the

case here.
The judge did not make any finding with respect to
whether Mendez had indeed induced or harbored 100 aliens. In fact,
the judge said not a word about how he determined this particular
enhancement

was

warranted.

He

simply

stated

that

"Count

controls."

Notably, this little tidbit came out not during the

handing down of Mendez's sentence, but only when the understandably

confused prosecutor asked for clarification.
We simply have no idea why the judge applied an alienbased enhancement, rather than a document-based enhancement as
suggested in the PSR, or why an enhancement should apply at all.
Perhaps the judge found the evidentiary proffer suggested by the
government at the change-of-plea colloquy sufficient to bring the
attributable number of aliens induced or harbored up to 100.

Or

maybe he latched on to the government's questionable theory,

advanced both in its sentencing memorandum and at the sentencing
hearing, that one can extrapolate from Note 2 of 2L2.1 that

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probation's finding of 100 documents is tantamount to a finding of

100 aliens.

There is also the prospect that the judge was, as

Mendez suggests, attributing the conspiracy-wide harm to Mendez.6

On top of this, we have the confusion caused by the judge
utilizing probation's offense-level calculation (minus the correct
sum

total),

stating

that

"the

offense

involved

100

documents," and indicating that the PSR got it right.

added.)

or

more

(Emphasis

There is also the fact that the record does not make it

irrefutably clear that Mendez did in fact induce or harbor 100

aliens.

Notably, probation and the government, though faced with

the same record, disagreed on this point.

100-aliens

mark,

in

the

government's

Indeed to reach the

own

words,

some

"extrapolating" is required.7
All that being the case, we would be hard pressed to
apply the oft-invoked maxims that the government emphasizes here.

To support this notion, Mendez points to the government's

sentencing
memorandum,
which
sometimes
conflated
Mendez's
individual culpability with that of the overall conspiracy. For
example, it stated a couple of times that enhancements on Counts
1 and 2 were warranted because "the conspiracy involved over 100
documents and aliens." (Emphasis added.)
7

The extrapolating the government focuses on is extending the

proffered amount of documents and identities out over the lifetime
of the conspiracy. But it seems to us there is another issue.
The record reveals that individual aliens sometimes received more
than one document for the same identity, and even those documents
sometimes had to be replaced with additional documents. Without
specific findings by the sentencing judge, this makes it impossible
for us to conclude on the record that one document, or one document
set, equals one alien harbored or induced.
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Yes, it is true that a "court's reasoning can often be inferred by

comparing what was argued by the parties or contained in the presentence

report

with

what

the

judge

did."

Rodrguez, 731 F.3d 20, 28 (1st Cir. 2013).

United

States

v.

And indeed, the law

"does not require a district court to be precise to the point of

pedantry." United States v. Fernndez-Cabrera, 625 F.3d 48, 53
(1st Cir. 2010).
axioms

here

But this only takes us so far and invoking these

would

effectively

render

our

review

meaningless.

"[I]n the end we must be able to figure out what [the court] found
and the basis for the findings to the extent necessary to permit
effective appellate review."

United States v. Zehrung, 714 F.3d

628, 632 (1st Cir. 2013) (citation omitted).

We cannot do that

here and, therefore, are unable to effectively consider even the

first prong of plain error review.
CONCLUSION
Let us be perfectly clear.

We recognize that "the plain

error hurdle is high," United States v. Hunnewell, 891 F.2d 955,

956 (1st Cir. 1989), and the administration of justice has been
well-served over the years by our strict enforcement of this
standard.

Here, however, the inscrutable footing on which the

district court's sizeable enhancement stands thwarts our ability

even to conduct plain error review.

We caution then that this

decision should not be read as a relaxation of the plain error

standard but, rather, as a reminder to sentencing courts that,

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where

the

basis

for

an

enhancement

is

neither

obvious

nor

inferable, some explanation should normally be forthcoming.

For the reasons laid out above, we vacate the sentence
and remand to the district court for resentencing consistent with
this opinion.

We do not take a stance on what the sentence should

be, or whether a document-based or alien-based enhancement (or

neither) is warranted.
sentencing judge.

That is, within wide limits, up to the

We leave untouched Mendez's claims that his

sentence was substantively unreasonable, and that the judge failed

to adequately explain his top-of-the-range sentence, as these
claims are inevitably tied to the enhancement the judge tacked on
and, therefore, subject to change on resentencing.

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